Text

Submits Rept on Review of NRC Emergency Planning Regulations & Guidance
	ML20217B025
Person / Time
Issue date:	02/22/1991
From:	Parler W; NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Carr, Curtiss, Rogers; NRC COMMISSION (OCM)
References
	NUDOCS 9103080135
	Download: ML20217B025 (9)
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MEMORANDUM FOR: Chairman Carr Commissioner Rogers Commissioner Curtiss Commissioner Remick FROM: William C. Parler ;

General Counsel

SUBJECT:

INSPECTOR GENERAL REPORT ON REVIEW OF NRC'S EMERGENCY PLANNING

REGULATIONS AND GUIDANCE DISTRIBUTION

IG EDO SECY K.Cyr, OCM H.Karman, OCM-J. Gray, OCM S.Crockett, OCM M.Malsch, OGC S.Treby, OGC J.Scinto, OGC I

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'..,'.. February 22, 1991 MEMORANDUM FOR: Chairman Car Comissioner Rogers Comi:;sioner Curtiss Cn%nissioner Remick FROM: William C. Parler General Counsel

SUBJECT:

INSPECTOR GENERAL REPORT ON REVIEW 0F NRC'S EMERGENCY PLANNING REGULATIONS AND GUIDANCE Your memorandum of February 15, 1991 requested my views on Recommendations 1 and 2 made in the Inspector General's January 16, 1991 Audit Report Review of NRC'S Emergency Planning Regulations and Guidance. (OlG Report). Specifically, the IG recomended that the EDO:

[r] estate the objective of emergency planning, as stated in NUREG-06$4/FEHA. REP 1, Rev.1, to be consistent with the objective of 10 CFR 50.47 and the 16 planning standards contained therein* (Recom-mendation1),and

[d)etermine if NRC has the authority to conduct its own reviews of offsite emergency preparedness * (Recomendation 2).

O!G Report at 25.

I conclude that the NRC has the authority to conduct is own reviews of offsite emergency planning and that, from a legal standpoint, there is no need for modification of NRC emergency planning regulations and guidance relating to the issue of ' dose savings."

I agree completely with the correctness of the assumption stated in the footnote to your memorandum requesting my views, it is my opinion that there is no legal doubt about NRC's authority, indeed responsibility, to make findings on the overall adequacy of onsite and offsite emergency preparedness. Comensurate with the Comission's responsibility to make such findings, the Comission has the authority to collect, review and evaluate any information it needs to support its findings on emergency preparedness.

The attached legal analysis provides a detailed discussion of the legal aspects of my position regarding these two recomendations. Since your memorandum emphasized the issue of NRC's authority rais by recomend ion 2, that issue is addressed first.

1 i iam . >arler General Counsel Attachment

I i

LEGAL ANALYSIS OF RECOMMENDATIONS 1 AND 2 0F OlG JANUARY 16, 1991 AUDIT REPORT Discussion of IG Recomendation 2 ,

The OIG Report recommends that the EDO "(d)etermine if NRC has the authority ,

to conduct its own reviews of offsite emergency preparedness." OlG Report at 25.

The. legal analysis orovided to the IG (Attachments 1 and 2 to 3e Report) make !

quite clear that NRC has the ultimate decisionmaking authority with respect to ,

emergency preparedness at nuclear facilities. However, O!G states:

Our report did not focus on NRC's " ultimate authority' to make final decisions on emergency preparedness. Instead, we focused on NRC's-authority to conduct its own reviews of offsite emergency planning.

We believe NRC's authority is unclear since FEMA has been designated the lead Federal agency for offsite emergency planning. FEMA's role in -assessing emergency- plans is derived: from the actions of the President, the Congress, NRC's Regulations and NRC's Memorandum of Understanding with FEMA. The response to our recommendation does not reflect consideration of the intent of the President or Congress.

0!G Report at 27.

The Office of the General Counsel believes that it is quite clear that NRC not only has the_ ' ultimate authority

to make final decisions on offsite emergency preparedness but also has authority to ' conduct' its own reviews of offsite .

emergency planning in support of that finding. Indeed, recent judicial i pronouncements by four Courts of Appeals reaffirm NRC authority to make i judgments on adequacy of offsite plans. Most recently, in Massachusetts v.

ILRI, No. 89 1306, slip op. at 22 23 (D.C. Cir. Jan. 25, 1991) the court stated:

[P]etitioners' argument that the NRC lacks expertise in offsite ,

emergency planning was expressly rejected in tig,achusetts v. United States, 856 F.71 378 (1st Cir. 1988), where the court held that

"[t]he substantive area in which an agency is deemed to be expert is determined by statute, here, under the relevant congressional enactments ..., the NRC is specifically authorized and d rected to determine whether emergency plans adequately protect the public." ,

14. at 382.

See also Massachusetts v. NRC, 878 F.2d 1516,1524 (1st Cir.1989); State of Ohio ex rel. Celebrezze v. NRC, 868 f.2d 810, 81516 (6th Cir.1989); fMiltDA County v. NRC, 709 F.2d 766, 770 (2nd Cir. 1983). These cases show the NRC-is authorized to determine the adequacy of offsite emergency plans. We believe that, since this is the case, then NRC must also have the regulatory power to effect this determination including the power to conduct its own review.

That authority is grounded in the Atomic Energy Act of 1954, as amended, (AEA), 42 U.S.C. Sections 2011-2295-(1988), and the Ener of 1974, as amended, 42 U.S.C. Sections 58415851 (1988)gy . InReorganization particular, the Act NRC is specifically authorized under Section 161(b) of the AEA to " establish

Legal Analysis of Recommendations 112 of OlG January 16, 1991 Audit Report Page 2 l

by rule, regulition or order, such standards ... as the Comission cay deem necessary or desirable to promott the comon defense and recurity or to crotect health or to minimize danger to life and property. in Power Peactor ;

Develorent Co. v. International Union of Electrical Radio Machine WorkerJ ,

367 U.S. 396, 404 (1961), the Supreme Court stated that the AEA " clearly contemplates that the Comission shall by regulation set forth what the public safety requirements are as a prerequisite to the issuance of any license or permit under the Act."

The Comission is also authorized under Section 161(c) to make such studies and investigations, obtaining such information ...

as the Comission may deem necessary ... to assist it in exercising any authority provided in (the AEA) ... or any regulations or orders issued thereunder.

and under Section 161(o) to require ... such reports ... with respect to, and to provide for such inspections of... activities under licenses ..., as may be necessary to effectuate the purposes of this Act ....

Thus, before Three Mile Island (THI), the NRC had broad statutory authority both to issue offsite emergency planning requirements and to conduct agency reviews of offsite emergency plans. None of the actions of the President and Congress following TMI removed the statutory authority of NRC in the offsite emergency planning arena.

O!G indicates its belief that NRC's authority to conduct reviews of offsite emergency preparednes:, is unclear in light of Presidential and Congressional intent to include FEMA in the process.

While President Carter issued Executive Order 12148 (44 FR 43239, July 20, 1979) assigning to FEMA responsibilities to coordinate the emergency planning functions of executive agencies, nothing in the Executive Order stripped NRC of its existing statutory authority. Further, although public remarks and a White House Fact Sheet, of December 7,1979, indicate that President Carter directed FEMA to take the lead in offsite emergency planning and response,2 the President never directed that FEMA's lead r71e in offsite emergency planning become the ' exclusive" Federal role. Evan if President Carter had intended an exclusive role for FEMA in offsite emergency planning, a role not suggested by the language in either the Executive Order or in the Remarks and fact Sheet, the President could not have unilaterally diminished the statutory

' Sections 161(i), 161(p) and 182(a) of the AEA also provide broad authority for agency regulatory actions necessary to effectuate the purposes of that Act.

8 Two Public Papers of President Caner 2203; The White House Fact Sheet: The president's Response to the Recomendations of the President's.

Comission on the Accident at Three Mile Island, pp.10-11, December 7,1979.

e e legal Analysis of Recommendations 1&2 of O!G January 16, 1991 Audit Report Page 3 authority vested in the NRC. Onl subsequent legislation or a reorganization plan could accomplish such result The legislative background also supports the conclusion that Congress did not strip NRC of its authority to conduct reviews of offsite emergency plans, in the period of time preceding the passage of the 1980 Authorization Act, (Public Law 96 295, June 30,1980), a proposal was introduced on April 30, 1980, during the 1981 Authorization Hearings, to transfer to FEMA all of NRC's functions with respect to State and local emergency plans incident to NRC's licensin That proposal, however, was not enacted.g As andstated regulatory responsibilities.

in Appendix II, page 4 of the OlG Audit Report:

Section 109 [of Public Law 96-295), however, did not follow the course charted by the April 30 proposal. Rather than transferring authority to FEMA, it, in effect, emphasized the NRC's role in view of its overall responsibility for public health and safety as the licensing agency. Indeed, Section 109 authorized NRC to proceed with the issuance of new operating licenses if it could make the reasonable assurance finding by relying in part on a offsiteplan,andintheabsenceofconsultationwithFEMA.ytility's ,

Far from removing the NRC's statutory authority to conduct reviews of offsite emergency planning, Sect {on 109 reaffirmed the NRC's unqualified authority to conduct those reviews. To be sure these provisions speak of NRC 3

Similarly, an unqualified acceptance of FEMA's views on offsite emergency planning without NRC review would have, in effect, amounted to a delegation of at least some portion of NRC's statutory licensing responsibility to FEMA. Such a delegation would not have been possible without legislation or a reorganization plan.

The supplemental legal analysis appended to the OlG report discusses in considerable detail the April 30, 1980 proposal, and subsequent similar proposals along with their fates both prior to and subsequent to passage of Public Law 96-295.

5 As stated in the legal analysis appended to the OlG Audit Report, subsequent authorizaticn acts did not alter tie emergency planning provisions contained in Public Law 96 295. The last act with emergency planning provisions was the 1984/1985 Authorization Act. The provisions of that act have expired without reenactment. No subsequent legislative efforts have been successful (see supplemental legal analysis anpended to the OlG Report and S. .< introduced on January 6,1987 at p.S284 of the Cangressional Record).

6 The supplemental legal analysis appended to the OlG Report, agrees as well, since the analysis concludes with the following statement: "The relationship between NRC and FEMA does not appear to contemplate a FEMA role that would preclude NRC reconsideration of offsite emergency planning issues under the auspices of the AEA's health and safety dictates, inasmuch as legislative proposals to that extent were never adopted by Congress."

l l

4-Legal AnaQsis of Recomendations 1&2 of O!G January 16, 1991 Audit Report Page 4 determinations rather than review. But the power to make a determination or finding on offsite emergency planning, to be at all meaningful, must imply the i power to review as well. See generally, u , U.S. v. Morton Salt Co. 338 U.S. 632. 642 43 (1950) for the underlying legal principle.

FEMA and NRC entered into a memorandum of understanding (MOV) on December 16, 1980 (45 FR 82713), superseding an earlier version of January 14, 1980 (45 FR 5B47). The MOV establishes responsibilities for each agency based on the underlying authority granted to each agency. Under the authority of the AFA, the NRC is: 'To make decisions with regard to the overall state of emergency preparedness (i.e., integration of emergency preparedness onsite as determined by the NRC and offsite as determined by FEMA and reviewed by NRC) ..." 45 FR at 82715, (emphasis added). The authority to review offsite emergency preparedness necessarily em5 races the authority to conduct such reviews.

Likewise, the provision of 10 C.F.R. 50.47 that FEMA's findings are to be treated as rebuttable presumptions, to be meaningful at all, also demonstrates that the NRC must be able to conduct its own review. Evidence contrary to that of FEMA must be reviewed by NRC in the adjudicatory process before the FEMA findings can be considered to be rebutted.

After nearly five years experience of working together in the area of offsite emergency planning, NRC and FEMA entered into a new MOV on April 18, 1985, superseding the in The 1985 MOV similarly reaffirmed the principles agreedtoin1980.jtialM00.

NRC has obligated itself to obtain receipt of FEMA views on offsite planrsng adequacy in connection with the licensing of nuclear power reactors. 10 CFR Section 50.47(a)(2). For operating reactors, the regulation contemplates receipt of FEMA views before taking adverse enforcement action, but is silent on the need for FEMA views where no enforcement action is contemplated. 10 CFRSection50.54(s)(2),(3). Section 50.54(s)(3) places no requirement on the NRC to obtain FEMA views prior to an NRC decision to allow restart or to permit continued operations, and in fact Section 50.54(s)(U provides:

"Nothing in this paragraph shall be construed as limiting the authority of the Commission to ta(e actie under any other regulation or authority of the Commission or at any time other than that specified in this paragraph." In conducting its own review of offsite emergency preparedness, the NRC would use as criteria the 16 planning standards under Section 50.47(b) along with NVREG-7 Among the NRC responsibilities delineated:

3. To review the FEMA findings and determinations as to whether offsite plans are adequate and can be implemented.

-4 To make radiological health and safety decisions with regard to the overall state of emergency preparedness (i.e., integration of emergency preparedness onsite as determined by the NRC and offsite as determined by FEMA and reviewed by NRC) ...

Legal Analysis of Recommendations 1&2 of OlG January 16, 1991 Audit Report Page 5 0654/ FEMA REP 1 (rev. 1), Criteria for Preparation and Evaluation of

_R_adiolooical Emeroency ResDonse Plans and Preparedness in SUDoort of Nuclear Power Plants.*

In cor.clusion, the- NRC has obligated itself by regulations and the M00 with FEMA, to cooperate fully in the task of assuring that the state of offsite emergency preparedness pruvides for the protection of the public health and safety required by the AEA. However, in the absence of explicit Presidential direction by reorganization plan or legislatian to remove the Commission from the process of reviewing offsite Emergency preparedness, for the- purpose of carryirig out its statutory responsibilities under the AEA, the NRC has the

" ultimate authority" under the AEA to make necessary decisions with respect to offsite emergency prepare! ness, and by necessity that authority includes the authority to conduct its own-reviews of offsite emergency preparedness in the absence of FEMA findings '

While NRC's authority i- quite clear, since the MOU is silent about the FEMA role following a cirrumstance in which FEMA withdraws its finding of

" reasonable assurance" in connection with emergency planning for a plant licensed to operate, tae Office of the General Counsel supports the ED0's proposal to have it:e st ff work with FEMA to clearly state responsibilities in such a situation.18 Discussion of Recommendatio.g_1 The OlG Report recommends that the EDO "(r] estate the objective of emergency planning, as stated in NUREG 0654/ FEMA REP 1, Rev. I to be consistent with the objective of 10 C.F.R. 50.47 and the 16 planning standards contained therein."

OlG Report at 25. OlG indicates that it believes that NRC's emergency planning regulations and implementing guidance "contain two conflicting objectives." OIG refers to 10 CFR S0.47 which " states that the objective of emergency- planning is to provide 'that there is reasonable assurance that adeouate orotective measures can and will be taken in the event of a radiological emergency'" and the statement in NUREG 0654/ FEMA-REP-1, Rev.1, that "the objective of emergency planning is ' dose savings'." O!G indicates a In Eu13&setts v. NRC, No. 89 1306, slip op. at 23-24 (0.C. Cir.

Jan. 25, 1991), the court upheld the NRC's position that adecuacy of the emergency plans is to be judged by conformity with the 16 planning standards ofSection50.47(b).

' "NRC is specifically authorized and directed to determine whether emergency- plans adequately protect the public." Massachusetts v. United 1t1111, 856 F.2d 378, 382 (1st Cir.1988); Massachusetts v. NRC, No. 89-1306, slip op, at 22-23 (D.C. Cir. Jan. 25,1991).

10 See Memoranda -dated October 1 and October 4,1990, from J.M. Taylor, EDO, to the Commission concerning the Pilgrim Emergency Preparedness Lessons Learned Task Force, lesson Learned 2.

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. a Legal Analysis of Recommendations 1&2 of O!G January 16, 1991 Audit Report Page 6 that it believes "NRC's use of the term ' dose savings' presents an inherent contradiction. (0!G Report at 1011, emphasis in original).

From a legal standpoint modification of 10 CFR 50.47 or NUREG 0654/ FEMA-REP-1, Rev.1, is not required. There is no legal requirement that the underlying purpose of a regulation be set forth as an explicit criterion of that regulation. For example, ensuring an adequate margin of performance of the ECCS should a design basis LOCA ever occur is the underlying purpose of the ECCS rule (39 F.R.1001 Nov.13,1973). However, that purpose is achieved not by requiring the computation of the margin of performance but by requiring compliance with the criteria and the calculational methodology prescribed by 10 CFR 50.46.

With respect to emergency planning, the Court of Appeals in Massachusetts v.

NRC, F.2d , No. 89 1306, D.C. Cir. , January 25, 1991, concluded that the Commission could properly seek to achieve adecuate protection of the public health and safety through the use of standards to judge emergency plans, rather than by weighing the doses or savings which might be achieved by various plans in the hypothetical situations at various nuclear plants. As recognized by the court, "This approach is thought (by the Commission) most likely to produce a flexible plan that offers the best fee,1ble means for minimizing harm to the public from unpredictable accidents .... " Slip op, at 20. As the court further indicated, "the core of the Comission's inquiry is compliance with generic standards" and not a weighing of specific doses from imagined accidents. M ., at 23 24. The court further recognited that, "In emergency planning . . . the goal of mitigating dose consequences . . . is attained through the application of generalized planning standards and githout consideration of actual levels of dose savinas." M , at 28 (emphasis added),

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